REVISE SEXUAL CONSENT AGE: A Call for Rationality and Justice in Kenya

The legal landscape surrounding sexual consent is a complex and often contentious terrain. In Kenya, the age of sexual consent is currently set at 18. While the intention behind this law is undoubtedly to protect minors from exploitation and harm, its practical application has led to a series of troubling inconsistencies and injustices, particularly concerning individuals aged 16 and 17. This article argues that a critical re-evaluation of the current age of consent is not only necessary but overdue, urging a shift towards a more nuanced and evidence-based approach that acknowledges the developmental realities of adolescents.

The current legal framework often results in the prosecution of consensual sexual encounters between individuals close in age, where one party is technically a minor. This has led to the distressing phenomenon of young men, and sometimes older men, facing severe legal consequences, including imprisonment, for engaging in relationships where mutual consent was clearly present. As a law enforcement officer, I have witnessed firsthand the agonizing consequences of these prosecutions. I have seen young, productive lives irrevocably damaged by convictions for “defilement,” even in cases where both parties were demonstrably willing participants. The image of a 25-year-old being jailed for a relationship he had at 22 with a 17-year-old is not just morally unsettling; it represents a profound failure of our justice system to distinguish between genuine exploitation and consensual adolescent relationships.

Psychological research offers compelling evidence that by the age of 16, most individuals have developed the cognitive capacity to understand the nature and consequences of sexual activity. They possess the ability to make informed decisions about their own bodies and relationships. Insisting that a 17-year-old is incapable of consenting to sex, while simultaneously acknowledging their capacity to engage in other adult activities like employment, creates a glaring contradiction. This inconsistency is further highlighted by the frequent cases of 17-year-olds working as domestic help. While parents may rightfully express outrage when their 17-year-old is involved in a sexual relationship with their employer, the fact that the same “child” is allowed to work and be paid raises serious questions about the coherence of our legal and societal understanding of adolescence. If a 17-year-old is deemed too immature to consent to sex, how can they be deemed mature enough to navigate the complexities of employment, often in vulnerable situations? This apparent paradox exposes a fundamental flaw in our current approach.

The Issue of child labour further complicates the narrative. We see instances where parents readily allow their 17-year-old children to work, often in demanding and potentially exploitative environments, yet vehemently oppose their involvement in consensual sexual relationships. This selective application of the “child” label reveals a societal discomfort with adolescent sexuality rather than a genuine concern for the well-being of young people. It is a societal hypocrisy to allow a 17-year-old to work long hours for meager pay, potentially facing exploitation in the workplace, yet deem them incapable of making informed decisions about their own bodies and relationships.

The consequences of maintaining the current legal framework are far-reaching. It not only leads to unjust convictions and the destruction of young lives but also undermines trust in the justice system. It creates a climate where genuine cases of sexual abuse may be overshadowed by the prosecution of consensual relationships, potentially diverting resources and attention from those who truly need protection. Furthermore, it discourages open communication about sexual health and relationships, leaving young people ill-equipped to navigate these crucial aspects of their lives.

It is crucial to emphasize that advocating for a revision of the age of consent is not about condoning child abuse or minimizing the importance of protecting minors. On the contrary, it is about creating a legal framework that is both just and effective in addressing the complex realities of adolescent development. A revised age of consent, perhaps set at 16 or 17 with appropriate safeguards and provisions for cases involving significant power imbalances or exploitation, would better reflect the cognitive and emotional maturity of young people.

Such a change would require a comprehensive public discourse, informed by scientific research and ethical considerations. It would necessitate robust educational programs on sexual health, consent, and healthy relationships. It would also demand stricter enforcement of laws against child labour and other forms of exploitation. A multi-faceted approach is essential to ensure the safety and well-being of young people while upholding the principles of justice and fairness.

The current situation Is untenable. We cannot continue to ignore the inconsistencies and injustices inherent in our current legal framework. It is time for a serious and open discussion about revising the age of sexual consent in Kenya, one that is grounded in evidence, reason, and a genuine commitment to protecting the rights and well-being of all young people. By acknowledging the developmental realities of adolescents and crafting laws that reflect those realities, we can create a more just and equitable society for all.

Fred Allan Nyankuru